Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801350

Original file (MD0801350.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080604
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)    20030403 - 20030914              Active:

Period of Service Under Review:
Date of Enlistment: 20030915      Period of Enlistment : Years Months     Date of Discharge: 20070612
Length of Service: Yrs Mths 28 D ys     Education Level:         Age at Enlistment:       AFQT: 59
MOS: 3531         Highest Rank: Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( ) / ( )
Awards and Decorations (per DD 214): Rifle ICM WITH BRONZE SERVICE STAR COC

Periods of UA/CONF:

SCMs:
20060927 : Article 112a (Drug use), wrongfully use MDMA.
Sentence: RESTR AND HARD LABOR FOR 30 DAYS.
CA Action: 20060927 Sentence approve and ordered executed.

6105 Counseling:
20070104 : For wrongful use of a controlled substance.

Types of Documents Submitted/reviewed

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education/Training:
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:
Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT .)

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1-2. Drug use was an isolated incident of misconduct in an otherwise good service record which is demonstrated by the fact he deployed back to Iraq for the third time after his SCM.

Decision

Date: 20080821 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Discussion

: ( ) . The Applicant contends his discharge should be upgraded based on his record of service which was good, apart from a single incident of misconduct. For the edification of the Applicant, despite a Marine’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An under other than honorable conditions discharge is normally warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by a summary court-martial for a violation of the Uniform Code of Military Justice, Article 112a, drug use. Violations of Article 112a are considered serious offenses, punishable by a punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety in the command’s administrative discharge process. The Applicant tested positive for drugs in July 2006 and went to a summary court-martial in September 2006. On 8 September 2006, he was notified of his separation and acknowledged his rights, to include the fact the least favorable discharge he may receive could be an “Under Other Than Honorable”. The records indicate the command took no further discharge action against the Applicant until January 2007.

In January 2007, his commanding officer submitted a request to the Battalion Commanding Officer for the Applicant to fulfill the remainder of his obligated service term due to the command’s pending deployment. By January 2007, the Applicant should have been discharged if the administrative process had been conducted properly. In April 2007, three months after the Battalion’s request and 7 months after being notified, the Battalion Commanding Officer, while deployed to Iraq, requested from the Commanding General, 2d MLG Forward to suspend the discharge due to the deployment and the Applicant’s willingness to serve in Iraq again. The commanding officer states “upon completion of the deployment, assuming the Marine conducts himself honorably in the combat, I request that the Commanding General consider a General discharge, with an under Honorable conditions characterization of service for this Marine’s discharge.” The command had already deployed with the Marine and was now asking for a suspension of the discharge until the unit’s return. The Applicant’s chain of command, at every level, withheld submission of the discharge paperwork to the Commanding General for a total of seven months. The Commanding General disagreed with the request for a suspension and ordered a separation within 10 working days after the Applicant returned to CONUS. The Marine was returned back to CONUS to effect his discharge.

The Board determined the delayed action by the command to retain the Marine for deployment purposes was improper. The command knew the discharge policy for Marine’s who abuse drugs, but failed to properly execute their administrative duties by delaying the discharge process with full intent of deploying the Marine. Once deployed the command then requested a suspension to the Applicant’s separation in hopes they could keep the Applicant in order to utilize him until the last available moment. The misconduct on behalf of the Applicant was wrong and he was appropriately taken to a summary court-martial for his actions. However, in good faith on his part he deployed back into a combat zone to continue to serve in an attempt to correct for his mistake and with knowledge his command now recommended a General discharge; reversing their original decision from July 2006. The Board determined for his willingness to deploy back into a combat zone, and the command’s

failure to properly process the paperwork as required, an upgrade would be appropriate. While the NDRB did not concur with the request to upgrade to an “Honorable” discharge, the Board did agree the characterization of the discharge should be “General (Under Honorable Conditions)”, as recommended by the Applicant’s commanding officer in his April 2007 letter. However, the narrative reason for the discharge, “Misconduct”, shall remain as issued. The Board determined the upgrade to “General (Under Honorable Conditions)” was warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge process was improper.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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USMC | DRB | 2008_Marine | MD0801350

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